KRM v VWT

In a Hague Convention return application, the Article 13(b) exception requires a forward-looking assessment of grave risk, based on the maximum level of risk reasonably supported by the allegations rather than definitive findings of fact. The court must assess the cumulative effect of the risks and the effectiveness and enforceability of protective measures. A primary carer’s refusal to return is assessed on a reasoned summary basis and forms part of the overall risk assessment.

The High Court’s inherent jurisdiction may permit the summary transfer of a child habitually resident in England to another country so that the foreign court can determine welfare, but the governing question remains the child’s best interests. Procedural fairness may require that such an application be adjourned for further evidence and a welfare report.

The father applied under the 1980 Hague Convention for the return to Australia of three children who had been habitually resident there and had been wrongfully retained in England. The mother relied on Article 13(b), alleging domestic abuse, risks arising from the father’s parenting, deterioration in her mental health, and separation of the children from her and their infant sister.

The father also sought an order under the inherent jurisdiction for the infant sister, Lois, who had been born in England and had never lived in Australia, to be sent there so that the Australian courts could determine the children’s welfare together. The court also considered whether it retained jurisdiction under section 5 of the Child Abduction and Custody Act 1985 to order interim contact after deciding that the elder children should return.

1. Article 13(b). The mother established that, absent effective protection, the alleged domestic abuse would create a grave risk to the elder children if she returned with them. The evidence did not establish a grave risk arising from the father’s care, a deterioration in the mother’s mental health, or separation from the mother and Lois if the children returned without her.
2. The court assessed the likelihood of the mother refusing to return and the consequences of possible separation on a summary basis. It made no definitive finding about what she would do. The likely separation would cause distress but would not, on the evidence, place the children in an intolerable situation or amount to grave risk.
3. The proposed undertakings were capable of being mirrored in an Australian court order and enforced there. They materially reduced the risks from alleged domestic abuse, financial dependence and coercive control. Financial support, accommodation, psychological treatment, notice of Australian proceedings, and the protection of Australian courts and services were sufficient, subject to further consideration of the timing of payment. Considering all risks and protections cumulatively, the Article 13(b) exception was not made out.
4. Lois application. The inherent jurisdiction could in principle be used to direct the transfer of a child habitually resident in England to another country so that the foreign court could determine welfare. The test was Lois’s best interests. The court was assisted by the structured welfare questions relevant to a summary return application, including the currency and sufficiency of the evidence, the appropriate welfare inquiry, domestic-abuse allegations, living arrangements, oral evidence, Cafcass evidence and the foreign court’s ability to resolve the dispute.
5. It would be procedurally unfair to determine the Lois application after only two weeks’ notice and without adequate evidence concerning her current circumstances or a Cafcass report. The application was therefore adjourned. The court could assume the abuse allegations for the purpose of evaluating protection, but the harm caused by the proposed change of circumstances had to be weighed within the broader best-interests assessment.
6. Interim contact. The court had jurisdiction under section 5 of the Child Abduction and Custody Act 1985 to direct interim contact after judgment but before an order implementing the return decision had been made. An interim contact order was accordingly made pending return.